# Radhey Shyam Pandey v. The State of U.P. another

- **Citation:** High Court of Judicature at Allahabad #39500
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-12-22
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-pandey-v-the-state-of-u-p-another-39500
- **Pages:** 6

## Text

1ALL] Radhey Shyam Pandey V. The State of U.P. another

93
 the authority in the present case, nor any
extraneous consideration.

Hence there is no force in this petition
and it is dismissed accordingly.
Petition Dismissed.

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By the Court

Heard learned counsel for the parties.

1. The petitioner was appointed as a
Junior Engineer in the Rural Engineering
Services of the U.P. Government and was
promoted
as
Assistant
Engineer
and
subsequently given charge of Executive
Engineer from 14.7.1997. He was placed
under
suspension
by
the
order
dated
22.12.1998 on grave charges of financial
irregularities alongwith others. An F.I.R. was
also filed against him and others at police
station, Kotwali, Ballia on 19.2.1998 vide
Annexure1 to the petition. The petitioner has
been charged for embezzlement of an amount
of Rs. 34,98,622/-. True copy of the F.I.R. is
Annexure 2 to the petition. True copy of the
suspension
order
dated
22.12.1998
is
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
94
Annexure 3 and true copy of the charge sheet
is Annexure4to the writ petition. Thus both,
criminal and departmental proceedings are
going on against the petitioner.

2. It is alleged in paragraph18 of the writ
petition that both criminal and departmental
proceedings are based on identical and similar
facts and hence the departmental proceedings
should be stayed till the completion of the
criminal case. In paragraph 20 of the petition
it is alleged that if departmental proceeding is
allowed to continue that will prejudice the
petitioner in the criminal case. In paragraph
21 it is alleged that in the criminal proceeding
the charge sare to be proved by the
prosecution without compelling the accused to
give his version while in the departmental
proceeding the petitioner is bound to disclose
his version and that will prejudice the
petitioner in the criminal case. The petitioner
has relied on the decision of the Supreme
Court in Capt. M.Paulk Anthony Vs. Bharat
Gold Mines Limited and others 1999 (2) ESC
1009 and has prayed that departmental
proceedings be stayed.

3. After hearing the learned counsel for
the parties and considering the facts in great
detail we are not inclined to stay the
departmental proceeding.

4. The question whether the departmental
proceedings should be stayed when a criminal
case is going on the same facts has received
the attention of the Supreme Court in several
decisions, many of which have been referred
to in M. Paul Anthony's case (Supra).

In Delhi Cloth and General Mills Ltd. vs.
Kushal Bhan AIR 1960 SC 806 the Supreme
Court observed:
"We cannot say that principles of natural
justice require that on employer must wait for
the decision at least of the criminal trial Court
before taking action against an employee- We
may, however, say that if the case is of a
grave nature, or involves questions of law or
fact which are not simple, it would be
advisable for the employer to await the
decision of the trial court so that the defence
of the employees in the criminal case may not
be prejudiced."

Similarly in Tata Oil Mills Company Ltd.
vs. Workmen AIR 1965 SC 155 the Supreme
Court observed:

"It is desirable that if the incident giving
rise to a charge framed against a workmen in
a domestic enquiry is being tried in a criminal
court, the employer should stay the domestic
enquiry pending the final disposal of the
criminal case and it would be particularly
appropriate to adopt such a course where the
charge against the workmen is of grave
character because in such a case it would be
unfair to compel the workman to disclose the
defence which he may take before the
criminal court. But to say that domestic
enquiry in spite of the fact that the criminal
trial is pending the enquiry for that reason
alone is vitiated and the conclusion reached in
such an enquiry is either bad in law or
malafide"

In Kusheshwar vs. M/s Bharat Cokins
CoalLtd. AIR 1988 SC 2118 the Supreme
Court observed:

"There could be no legal bar for
simultaneous proceedings being taken yet,
there may be cases where it would be
appropriate to defer disciplinary proceeding
awaiting disposal of the criminal case.
Whether in the fact and circumstances of
particular case there should or should not be
such simultaneity of the proceedings would
then receive judicial consideration and the
Court will decide in the given circumstances
of a particular case as to whether the
disciplinary proceedings should be interdicted
pending criminal trial. It is neither possible
nor advisable to evolve a hard and fast, strait
jacket formula valid for all cases and of
1ALL] Radhey Shyam Pandey V. The State of U.P. another

95
general application without regard to the
particularities of the individual situation."

The Supreme Court further observed in the
same case:

"In the instance case, the criminal action and
the disciplinary proceedings are grounded
upon the same set of facts. We are of the view
that the disciplinary proceedings should have
been stayed and the High Court was not right
in interfering with the trial court's order of
injunction which had been affirmed in
appeal."

In State of Rajasthan vs. B.K. Meena
A.I.R. 1997 SC 13 the Supreme Court
observed:

"It would be evident from the above decisions
that each of them starts with the indisputable
proposition that there is no legal bar for both
proceedings to go on simultaneously and then
say that in a certain situation, it may not be
desirable, advisable or appropriate to proceed
with the disciplinary enquiry when a criminal
case is pending on identical charges. The
staying of disciplinary proceeding, it is
emphasized is a matter to be determined
having regard to the facts and c circumstances
of a given case and no hard and fast rules can
be enunciated in that behalf. The only ground
suggested
in
the
above
decisions
as
constituted a valid ground for staying the
disciplinary proceedings is that the defence of
the employee in the criminal case may not be
prejudiced. This ground has, however, been
hedged in by providing further that this may
be done in cases of grave nature involving
questions of fact and law. In our respectful
opinion, it means that not only charges must
be grave but that the case must involve
complicated questions of law and fact.
Moreover, 'advisability'; 'desirability' or
properly, as the case may be, has to be
determined
in
each
case
taking
into
consideration all the facts and circumstances
of the case. The ground indicated in DCM
(AIR1960 SC 806) and Tata Oil Mills (AIR
1965 SC155) is also not an invariable rule . It
is only a factor, which will go into the scales
while judging the advisability or desirability
of staying the disciplinary proceedings. One
of the contending consideration is that the
disciplinary enquiry cannot be - and should
not be - delayed unduly. So far as criminal
cases are concerned, it is well known that they
drag on endlessly where high officials or
persons are involved. They get bogged down
on one or the other ground. They hardly ever
reach a prompt conclusion. That is the reality
in spite of repeatedly advice and admonitions
from this court and the High Courts. If a
criminal case is unduly delayed that may itself
be a good ground for going ahead with the
disciplinary
enquiry
even
where
the
disciplinary proceedings are held over at an
earlier stage. The interests of administration
and good government demand that these
proceedings are concluded expeditiously. It
must
be
remembered
that
interests
of
administration demand undesirable elements
are
thrown
out
and
any
charge
of
misdemeanor is enquired into promptly. The
disciplinary proceedings are meant not realty
to punish the guilty but to keep the
administrative machinery unsullied by getting
rid of bad elements. The interest of the
delinquent officer also has in a prompt
conclusion of the disciplinary proceeding. If
he is not guilty of the charges, his honour
should be vindicated at the earliest possible
moment and if he is guilty, he should be dealt
with promptly according to law. It is not also
in the interest of administration that persons
accused of serious misdemeanor should be
continued in office indefinitely, i.e., for long
periods awaiting the result of criminal
proceedings. It is not in the interest of
administration. It only serves the interest of
the guilty and dishonest. While it is not
possible to enumerate the various factors for
and
against
the
stay
of
disciplinary
proceedings. We found it necessary to
emphasize
some
of
the
important
considerations in view of the fact that very
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
96
often the disciplinary proceedings are being
stayed for long periods pending proceedings.
Stay of disciplinary proceedings cannot be,
and should not be, a matter of course. All the
relevant factors, for and against, should be
weighed and a decision taken keeping in view
of the various principles laid down in ;the
decisions referred to above."

5. In Depot Manager vs. Mohd. Yousuf
Miyan AIR 1997 SC 2232 it was held that
there is no bar to proceed simultaneously with
the departmental enquiry and trial of a
criminal case unless the charge in the criminal
case
is
of
a
grave
nature
involving
complicated questions of fact and law.

6. In M. Paul Anthony's case (Supra) the
Supreme
Court
framed
the
following
conclusions from the aforesaid decision:

(i)
Departmental
proceedings
and
proceedings in a criminal case can proceed
simultaneously as there is no bar in their
being
conducted
simultaneously,
though
separately.

(ii) If the departmental proceeding and
the criminal case are based on identical and
similar set of facts and the charge in the
criminal case against the delinquent employee
is of a grave nature which involves
complicated questions of law and facts, it
would be desirable to stay the departmental
proceeding till the conclusion of the criminal
case.

(iii) Whether the nature of a charge in a
criminal
case
is
grave
and
whether
complicated questions of facts and law are
involved in that case, will depend upon the
nature of offence, the nature of the case
launched against the employee on the basis of
evidence and matter collected against him
during investigation or as reflected in the
charge sheet.

(iv) The factors mentioned at (ii) and (iii)
above cannot be considered in isolation to
stay the departmental proceedings but regard
has to be given to the fact that the
departmental proceedings cannot be unduly
delayed.

(v) If the criminal case does not proceed
or its disposal is being unduly delayed, the
departmental proceedings, even if they were
stayed on account of the pendency of the
criminal case can be resumed and proceeded
with so as to conclude them at an early date,
so that if the employee is found not guilty,
administration may get rid of him at the
earliest."

7. We have carefully considered all the
aforesaid decisions of the Supreme Court, As
observed in some of the decisions, each case
has to be seen on its own facts and no hand
and fast general guidelines can be laid down.

8. In the present case the allegation
against the petitioner is of embezzlement of
an amount of about Rs.35,00,000/- as a
evident from both the F.I.R. as well as the
charge sheet, which runs into almost 100
pages and contains as many as 46 charges. A
perusal of the same shows that the allegation
against the petitioner and his other associates
are very serious of embezzling a huge amount
of government money which may run into
crores of rupees. The F.I.R. was filed as far
back as in 1998 and as yet it appears criminal
proceedings are still going on.

9. In our opinion, in the present case when
there are grave charges against the petitioner
and his associates of embezzling huge amount
of public funds the disciplinary proceedings
should not be stayed. In our opinion, in
deciding whether to stay the departmental
proceedings the nature of the charges has to
be carefully for example, if an employee is
accused of murder then it may be advisable
stay the departmental proceeding (keeping the
accused under suspension) till the conclusion
1ALL] Radhey Shyam Pandey V. The State of U.P. another

97
of the criminal trial. Similarly in cases of
offences such as dacoity and assault the same
course of action may be followed. However,
there are different kinds of serious charges,
and the same course of action cannot be
followed for all them. The charge of murder is
a serious charge, but so is the charge of
embezzlement of huge amount of public
funds. In our opinion while there should be no
stay in the departmental proceeding till the
pendency of the criminal charge in the former
case (while keeping the accused under
suspension), there should be no stay of
departmental proceeding in the latter case. In
our opinion the observation of the Supreme
Court in certain decisions that where the
criminal
proceeding
and
departmental
proceeding are grounded upon the same set of
facts the latter should be stayed cannot be said
to be a universal or hard and fast absolute
rule. As observed by the Supreme Court itself
in several decisions e.g. in Kusheshwar's case
(Supra), there cannot be a strait jacket formula
for all cases. In our opinion, in the case of
embezzlement or huge financial irregularity
the departmental proceeding should not be
stayed because in the cases of embezzlement
of huge amount of public funds the entire
economic and social system of the country is
adversely affected. Everyone knows that there
is corruption and financial irregularity on a
large scale in our country and this is playing
havoc with our economy. On the other hand,
offences such as murder, assault, etc. are of a
personal nature and do not affect society or
the
economy
as
a
whole.
Hence
the
observation of the Supreme Court that if there
are
grave
charges
the
departmental
proceedings should be stayed pending the
criminal trial on the same set of facts cannot
be understood to relate to charges like
embezzlement of huge amount of public funds
or large scale financial irregularities. Any
kind of leniency in the latter cases will be
wholly misplaced and uncalled for.

10. Moreover, we do not see how the
defence of the petitioner in the criminal case
will be prejudiced if he is compelled to
disclose his defence in the disciplinary
proceeding. In our opinion in such cases of
embezzlement of huge amount of public funds
it cannot be said that if the departmental
proceedings will go on the criminal trial will
be prejudiced.

11. As observed by the Supreme Court in
Kusheshwar's case (Supra) there cannot be a
hard and fast strait jacket formula valid for all
cases and hence the observation in some cases
that departmental proceeding should be stayed
if there are grave charges and a criminal trial
is pending on the same set of facts cannot be
treated as a hard and fast rule applicable in all
circumstances. The observations in certain
decisions of ;the Supreme Court that the
departmental proceedings should be stayed if
there are grave charges and complicated
questions of law and facts are involved is not
a hard and fast rule. As observed by the
Supreme Court in State of Rajasthan vs. B.K.
Meena (Supra), the interest of administration
and that undesirable elements are thrown out
after a prompt enquiry. Moreover, as observed
in the same case, criminal cases often drag on
endlessly and this is also a factor for not
staying the departmental proceeding. In the
present case the F.I.R. was filed on 19.2.1998
and it may take years for the criminal case to
be decided.

12. The observations in certain decisions
of the Supreme Court that the departmental
proceeding should be stayed where both the
proceedings are on the basis of the same facts
and allegations cannot be treated as an
absolute legal proposition, and it is merely
one of the factors which may be taken into
consideration by the court in deciding whether
to stay the departmental proceeding. After all,
the question whether to stay the departmental
proceedings when a criminal case is pending
is a question that arises when both the
proceedings relate to the same set of facts.
Hence the decision in M. Paul Anthony's case
(Supra) cannot be treated to lay down
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
98
universal hard and fast rules as to when the
departmental proceeding should be stayed.

13. In the present case, as already
mentioned
above,
there
are
allegations
regarding embezzlement of huge amount of
public funds by the petitioner and his
associates. A perusal of the charge sheet
which is almost 100 pages long and contains
as many as 46 charges shows that serious
allegations of huge financial embezzlement
and misappropriation of public funds have
been made against the petitioner and his
associates. In State of Rajsthan vs. B. K.
Meena. also there were grave charges
pertaining
to
misappropriation
of
huge
amount of public funds and this was a factor
which
the
Supreme
Court
took
into
consideration while refusing to stay the
departmental proceeding.

In our opinion it will not be in the
interest of justice to stay the departmental
proceeding on the facts of the present case.
We are not inclined to exercise our discretion
under Article 226 of the Constitution in the
present case.

The petition is dismissed.